Federal judge rules former immigration head was illegally appointed

A federal judge ruled this week that one of Donald Trump’s top immigration officials was illegally appointed, NPR reports.

The appointment of Ken Cuccinelli to lead U.S. Citizenship and Immigration Services (USCIS), which oversees legal immigration, ran afoul of rules for filling vacancies under a 1998 law, U.S. District Judge Randolph Moss said in a 55-page ruling Sunday. Moss ordered that two asylum directives given by Cuccinelli be “set aside” for five Honduran asylum seekers who are facing removal orders, according to NPR.

“On the merits, the Court concludes that Cuccinelli was not lawfully appointed to serve as acting Director and that, as a result, he lacked authority to issue the reduced-time-to-consult and prohibition-on-extensions directives,” Moss wrote in his ruling.

Leapfrogging through DHS?

According to the Associated Press, Cuccinelli was selected to be USCIS’s Principal Deputy Director in June 2019, shortly after the agency’s director, Lee Cisna, resigned. Moss argued Sunday that Cuccinelli was able to “leapfrog” to the top of the USCIS in an acting capacity without first serving in a subordinate role, in violation of the Federal Vacancies Reform Act (FVRA).

Under FVRA, Cisna’s post should have been filled by the “first assistant,” or chief subordinate, who was USCIS Deputy Director Mark Koumans, Moss wrote, according to Fox News. Since Cuccinelli’s post — principal deputy director — did not exist before the vacancy arose, he was never a “first assistant” to anyone except in name, Moss said.

Then-acting secretary of the Department of Homeland Security, Kevin McAleenan, created the post and then changed the structure of the USCIS so that Cuccinelli rose to the top, according to Moss. “Here, the acting Secretary created a position that is second in command in name only,” the judge wrote.

Judge rules against Trump admin

The ruling came in a case brought by five Honduran asylum seekers, two Honduran women and three children, who were denied asylum and are facing deportation. The plaintiffs, who are joined by an immigration nonprofit, argue in part that they were not given a fair opportunity to prepare for so-called “credible fear” interviews, which are used to establish whether an asylum seeker has a merited fear of persecution in their country of origin, according to NPR.

Those interviews are overseen by USCIS. As acting director of the USCIS, Cuccinelli — who is also deputy secretary of the DHS — issued two directives in July to expedite them, in keeping with an effort by the Trump administration to cut down on abuse of the asylum process and a backlog of cases.

The first directive reduces the time that asylum seekers have to prepare for those interviews from 48–72 hours down to a single day in order to prevent “unduly” delay of the process, NPR reported, and the second prohibits extensions “except in the most extraordinary of circumstances,” such as illness or disability.

Judge Moss agreed with the plaintiffs that the directives are invalid because Cuccinelli’s appointment wasn’t valid either, and he called for the “credible fear” assessments of the plaintiffs – but not other impacted asylum seekers, as of now — to be voided. “To be sure, the Court has concluded that the two directives are invalid and must be set aside,” Moss wrote.

A fight ahead

The impact of the decision remains unclear, but the DHS appears poised to fight it.

“We obviously disagree with the court’s decision and will be looking closely at the decision,” the department said in an email to NPR.

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